Derrida and the Death Penalty

WHILE 48 of 49 European nations have abolished the death penalty, it remains legal in 32 US states, with no shortage of politicians and voters eager to lend it their vocal support. Surveys indicate that 60 percent of Americans favor capital punishment for murderers, and while this number has dropped from 80 percent in the early 1990s, only 37 percent tell pollsters that they oppose the practice outright. At the same time, the pace of executions has slowed — in 2013, just 39 of the more than 3,100 inmates on death row were put to death — and they take place in only a handful of jurisdictions. According to the Death Penalty Information Center’s recent report, two percent of US counties have been responsible for the majority of capital cases leading to executions since 1976, with 85 percent of US counties having had no such case in the last 45 years. Still, it would be wrong to conclude that this controversial practice with a relatively broad mandate but markedly localized application is on its way out. Although he is personally opposed to the death penalty, US Attorney General Eric Holder recently announced that the federal government will seek a death sentence in its case against 20-year-old Dzhokhar Tsarnaev, who is accused of the Boston Marathon bombing — a decision for which initial polls indicate 70 percent approval. The media circus surrounding this trial will likely surpass the considerable attention paid to the last high-profile federal capital case: the trial, sentencing, and execution of Timothy McVeigh for the Oklahoma City bombing. Less clear is whether this prolonged spectacle will have any impact on public opinion regarding the death penalty.

Jacques Derrida’s The Death Penalty (Volume I), the first half of a two-year seminar he gave from 1999 to 2001 in Paris and then again at American universities, offers a new perspective on the vexing, seemingly intractable debates that surround capital punishment in this country. The book’s appearance will undoubtedly be greeted with enthusiasm by those who have read and appreciated Derrida’s writings for some time (and there are many), but do its observations and arguments have the potential to reach a broader audience? During his lifetime, Derrida’s scholarly work exerted enormous influence on academic practices around the world, profoundly changing the ways people in numerous disciplines thought and wrote about thinking and writing. Like Jean-Paul Sartre or Michel Foucault, Derrida also came to enjoy considerable celebrity beyond the ivory tower. Profiled in news features and documentary films, he met with world leaders and figured in pop songs. His impact beyond the academy was registered in more subtle ways, as well. To this day, many who have never read a word of his work casually use the verb “to deconstruct.” For his part, Derrida expressed considerable unease about the “temptation” for intellectuals to “renounce the academic discipline normally required ‘inside’ the university and to try instead to exert pressure through the press and through public opinion, in order to acquire an influence or a semblance of authority that has no relation to their own work.”

As abundant as his fans were, at least as many academics regarded Derrida as a mysterious if not impenetrable thinker, a view crystallized by his scandalous 2004 New York Times obituary, which referred to him without qualification as a “difficult” and “abstruse theorist.” For his most devoted detractors, Derrida was nothing short of a charlatan. When he was offered an honorary degree by the University of Cambridge in 1992, a letter signed by a group of philosophers from major institutions around the world appeared in the London Times declaring that his work “does not meet accepted standards of clarity and rigor,” in no small part due to a “written style that defies comprehension.” These critics attacked Derrida for “stretch[ing] the normal forms of academic scholarship beyond recognition,” as the Times letter put it, precisely what his fans lauded as one of his signature achievements.

Derrida’s prominence in North American universities has waned, at least superficially, in the decade since his death. A new group of European philosophers has supplanted him as the must-reads of the moment, including Alain Badiou, Jacques Rancière, and Slavoj Žižek. In the intellectual circles in which Of Grammatology and Specters of Marx were once standard fare, the works of Gilles Deleuze or Giorgio Agamben are now more likely to enjoy pride of place. Perhaps most striking for those who remember a time when Derrida’s oeuvre was viewed as a fount of productive positions on virtually every philosophical topic, there is an increasing tendency to refer to his “one or two” major ideas, as if his thought were distinguished not by its range but by its lack thereof. Of course, fashions in academic citation practices may be poor measures of Derrida’s abiding influence, which makes itself felt in numerous contexts in which he is never mentioned by name, not least because so many of his strategies and positions are now widely taken for granted.

Picking up any of Derrida’s texts, it is hard to miss the unique conceptual vocabulary of catchy neologisms and the unusually self-reflexive authorial voice that constantly refers to what it will and will not be able to do or say. Charges of staggering complexity and obscurity, however, will seem overblown. Large sections of Derrida’s published writings are models of patient exegesis, and his best essays treat canonical passages from literature and philosophy with great clarity and thoroughness. In a few paragraphs, he can deftly give shape to longstanding debates about Plato, Heidegger, or Rousseau, describing the designs and ambitions of arguments as he works through their implications. Perhaps most distinctively, Derrida’s discourse invites its readers to take up and continue his reflections. As substantive as the insights he wins may be, there is never a suggestion that the topic has been exhausted; to the contrary, he assumes precisely that the discussion can and must be extended, by Derrida’s future contributions as well as by our own.

In the same vein, those who attended Derrida’s seminars and saw him “live” will have been struck by the contrast between his reputation as a “notoriously difficult philosopher” (to quote TheNew York Times obituary again) and the articulate, focused presentation on display in his classroom. His commentaries on the nuances of a single sentence or word were legendary for their length and intricacy, but he never failed to foreground the fundamental stakes of the debates at hand and the central questions motivating the analysis. The result was a rare combination of erudition, argumentative dexterity, and a style of interpretation that made it clear that the real master in the room was the text at hand.

¤

Derrida’s teaching career spanned from 1959 to 2003. It began in France and after 1968 extended to the United States, where he was a regular visiting professor at a host of universities, including at first Johns Hopkins and Yale, and later the University of California at Irvine and NYU. The material he delivered in his seminars amounts to some 14,000 pages, which are now being posthumously published, in reverse chronological order, with each book appearing first in the original French from Éditions Galilée in Paris, followed by an English translation from the University of Chicago Press. The team of American academics heading the English-language side of the project, which will ultimately consist of 40 or more volumes, includes some of Derrida’s most experienced translators and commentators. (Information about the work and the production schedule is available at www.derridaseminars.org.)

From Alexandre Kojève’s famously influential lectures on Hegel’s Phenomenology in the 1930s to the seminars of Jacques Lacan, recorded by a shorthand typist but for many years left unpublished and untranslated, the reach of many continental thinkers has been shaped and expanded by records of their courses and other oral presentations as much as by their more formal written work. Over the past decade, the uncanny sense that a familiar philosopher’s corpus can continue to evolve long after his death has been reinforced by the publication and subsequent translation into English of Theodor W. Adorno’s lectures in Frankfurt in the 1960s, as well as by the steady stream of “new” lectures and seminars being added to the corpus of Martin Heidegger. Whether based on verbatim transcriptions, recordings, or reconstructions of his or his students’ notes, Heidegger books seem fated to appear in perpetuity; his Gesamtausgabe, already up to 80 volumes, is scheduled to expand by several dozen more. Similarly, the last decade has seen the translation into English of almost all of the public lectures Foucault delivered at the Collège de France between 1970 and 1984, with the final few volumes forthcoming.

In the general introduction included in each volume of the new Derrida seminars, the French editors explain that Derrida might not have published these texts in this form, if at all. While many of the courses Derrida gave dealt with material that is already well known from his published writings or interviews, he allowed himself some freedoms in the classroom, both in terms of extending lines of thought that might have been foreshortened in another format, and in commenting on some of his contemporaries, allies and critics alike, with less deference than he tended to demonstrate elsewhere. The DeathPenalty —skillfully rendered in English by Peggy Kamuf, who has been one of Derrida’s best translators for over 30 years — contains the first 11 sessions of a two-year seminar given in Paris and then again at Irvine and NYU.

For an “abstruse” theorist, Derrida wrote a great deal about current events — nuclear war, apartheid, terrorism — and his last 12 years of teaching saw him explore a series of explicitly political topics under the heading “Questions of Responsibility.” The death penalty seminar took place after several years of work on the concepts of pardon and perjury, and just before a two-year sequence on the sovereign, one of whose essential powers is the ability to decide whether or not to pardon someone sentenced to die. (The two volumes of this last course, the first to appear as part of the new translation project, were published in 2009 and 2011 as The Beast and the Sovereign I and II.) In contrast to most of the other seminars in the “Responsibility” series, relatively little of Derrida’s research on the death penalty has been published, making the appearance of this book all the more significant.

Since this new volume is only the first of two years of seminars on the topic, the editors caution readers not to “finalize” their sense of Derrida’s position on the death penalty until reading the second volume, scheduled to appear later this year. Even given that this first book “ends in the middle,” as it were, its organization presents some challenges. The American editors are perhaps overly optimistic when they declare that “the careful reader of the series represented by this two-year development on ‘the death penalty’ will easily perceive each year’s structure.” In the course of the seminar, a given subject or text may be considered at length and then set aside, never to return, whereas other figures and passages pop up time and again. These various comings and goings are not always signposted in advance, so the first time through one cannot be sure which writers or arguments will turn out to be most worthy of reflection or why the texts are being dealt with in this particular order.

Nonetheless, the driving concern of the seminar is as clear as it is provocative. “Never to my knowledge,” Derrida declared in a contemporaneous conversation with French historian Élisabeth Roudinesco, “has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as such contested the legitimacy of the death penalty.” As an experiment, I shared this claim with a number of academic philosophers. Their initial skepticism quickly turned to surprise as they realized that, as Derrida observes, virtually all of the major philosophers were either ardent advocates of capital punishment, reluctant apologists for it, or markedly silent on the topic. Even those, Derrida adds, “who maintained a public discourse against the death penalty never did so, to my knowledge — and this is my provisional hypothesis — in a strictly philosophical way.”

One may raise an eyebrow at the formulation “in a strictly philosophical way,” if only because one can’t help imagining how Derrida himself, in another mood, might have pounced on it: can philosophy ever be strictly philosophical? Doesn’t philosophy come into its own precisely by losing itself when it seeks a way of its own? Yet these are precisely Derrida’s concerns, for at issue is not just what certain philosophers have said about the death penalty, but whether Western philosophy is in some way organized by its investment in this particular doctrine of punishment. Derrida’s suggestion is that the death penalty is both one penalty among others and the penalty of penalties, a transcendental condition of possibility of justice and punishment. Criminal law as we know it, if not law in general, would be inconceivable in its absence. The death penalty, he writes, “has always been the effect of an alliance between a religious message and the sovereignty of the state,” state sovereignty, first and foremost, being the power over the life and death of subjects. It is therefore not simply a question of maintaining that we can only understand the death penalty by explaining the relations between traditional theological, juridical, and political discourses. The reigning theological-juridico-political constellation can be approached and understood only through a study of capital punishment.

Derrida makes it clear at the outset of The Death Penalty that his “discourse is going to be abolitionist,” or more precisely, he allows that “it is obvious” that we, his audience, have already understood that he is “obviously” against the death penalty. For Derrida, the pressing question is not so much why one ought to be abolitionist but how: on the basis of what doctrine or stance can one justify this commitment? Given the widespread opposition to the death penalty among Western intellectuals, this may sound like a strange concern. Most Americans are familiar with a variety of arguments against capital punishment: it fails to deter crime; it is disproportionately directed against minorities; it violates the constitutional prohibition on cruel and unusual punishment; it contributes to the glorification of violence and revenge as the essence of justice. Are these, however, principled positions, or do they remain at a level of sociological, cultural, or psychological argument that does not actually touch the more foundational tenets of the doctrines that inform, and are informed by, philosophical defenses of the death penalty?

As Derrida traces the European abolitionist tradition from the 18th-century Italian jurist Cesare Beccaria to Victor Hugo and Albert Camus, he expresses concern that the arguments mobilized against capital punishment rely on many of the same Christian doctrines invoked by its proponents. The question of what a principled but secular rejection of the death penalty might look like leads him to a confrontation with Immanuel Kant, the avatar of Enlightenment reason and champion of perpetual peace through world government, who was also, as it happens, a staunch advocate of capital punishment. Central to Kant’s position on the death penalty is his categorical imperative: “Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.” Kant argues that to justify the punishment of a wrongdoer with reference to deterrence, rehabilitation, or revenge is precisely to use the criminal as a means rather than an end. Stripped of any such exogenous determinations, the categorical imperative of penal law becomes equivalence between crime and punishment; hence the only acceptable punishment for someone who commits an illegal homicide is death. The killer must be killed because there is no substitute for death, nothing else that could stand in for it; and this individual must be executed without regard for individual circumstances or personal feelings, all of which would compromise the categorical nature of the justice at work. Crucially, Kant endorses the death penalty not as a concession to our barbaric impulses, but rather as the ultimate confirmation of our respect for human dignity: the defining act, in Derrida’s paraphrase, whereby “homo noumenon must raise himself above the homo phaenomenon who clings to life and to the motives of vital interest, to hypothetical imperatives.” The embrace of the hyperrationality of the death penalty is what affirms the difference between human beings and animals; it is a quintessential form of our experience of rationality as such.

Unsurprisingly, Derrida has no trouble teasing out some of the peculiar ramifications of this doctrine, especially when it comes to the curious exceptions Kant makes for women who kill children they have borne out of wedlock and for those who prevail in duels. This brings Derrida to a fundamental irony of Kant’s moral thought and theory of law. In the realm of justice, Derrida writes,

when the history of morality and of civil society will have progressed to the point where there is no more discord between the subjective motives and the objective rules, then the categorical imperative that presides over the death penalty will be fully coherent […] but of course there will be no more need to sentence to death.

The categorical imperative achieves its perfect form precisely at the moment that it is no longer required. If this “extraordinary rationality” is also “stupid uselessness,” as Derrida puts it in a rare moment of pique, it makes Kant’s position remarkably resistant to attack, since all utilitarian considerations will be dismissed as heteronomous with respect to the pure will to punish and the guiding standard of equivalence.

By the end of the first year of the seminar, it is clear that Derrida fears that Kant represents a philosophical position on the death penalty for which the European abolitionist tradition has no solid rebuttal. While Derrida indicates that he will return to Kant’s argument at length in the following year, he already attempts to unsettle Kant’s authority by reflecting on the notion of interest, a polyvalent and highly volatile concept in Kantian thought and a key point of intersection between philosophy and classical political economy. What does it mean to “have an interest,” to “take an interest,” or to be “interested” in something? What, to be more specific, does it mean to speak of the “interests” of the proponents and opponents of the death penalty? The main thrust of Kant’s argument for capital punishment is that the death penalty, as the categorical imperative of penal justice, can be advanced without reference to any phenomenal, empirical interest, for society or the nation. As Derrida notes, however, abolitionist discourse makes a similar claim, maintaining that the value of human life lies beyond any calculation of interest, thereby mandating a rejection of the death penalty on the same grounds on which Kant endorses it.

What kind of interest, Derrida asks, drives these competing discourses of absolute disinterest? Are Kant’s “interests of pure reason” another name for disinterest? In slightly different terms: what does it mean to be interested in being disinterested? Here Derrida considers Nietzsche’s critique of Kant’s disinterested judgments, ultimately arriving at the claim, also advanced in different ways by Lacan and Horkheimer and Adorno, that the Kantian categorical imperative is informed by a constitutive cruelty for which it can never account. Derrida extends this line of discussion with a call to think about what it means to speak of the interests of a nation or even a global state, in particular their interests in maintaining or abolishing the practice of capital punishment. It would appear, however, that the exposition of this concept has not yet amounted to a full-fledged refutation of Kant.

Another line of argument Derrida gestures toward but does not develop in this volume begins with his intriguing observation, near the start of the seminar, that “the short, strict, and modern history of the institution named literature in Europe over the last three or four centuries is contemporary with and indissociable from a contestation of the death penalty.” Acknowledging that many poets and novelists have defended the death penalty, Derrida nonetheless suggests that in literary discourses, the rules of language take forms that are not simply incompatible with the positional dynamics underlying Kant’s categorical imperative, but actively counter Kant’s understanding of linguistic acts. Derrida also claims that with all four of his paradigmatic examples of subjectivity as the subjection to a death sentence — Socrates, Jesus, Hallaj, and Joan of Arc — what was actually being put to death was language, language that in each case claimed to be the presentation of divine speech. These four figures must be executed, suggests Derrida, because people are afraid to hear — “directly, immediately” — the voice of God, which is also to say that these four must be killed because their defining statement, “I am the truth,” confronts both church and state with a performative utterance with which the established models of sovereignty, and therefore the hegemonic understandings of life and death, cannot contend.

¤

The death penalty was abolished in France in 1981, by which time it had already been done away with in most other Western European nations, many of which had not seen a state execution for more than a century. One might ask whether a French philosopher’s interest in exploring the topic almost 20 years after the fact was merely, as it were, academic, a question to which Derrida himself is sensitive. He points out that the death penalty was abolished by his government long before a majority of the French populace turned against it; indeed, polls suggest that they did not do so until 1999, the first year of Derrida’s seminar, which in this respect was auspiciously timed. Another reason that the issue may have had some urgency for Derrida is that he was spending so much time in the United States, which he describes as “one of the rare, or even the only and the last large country of so-called European culture, and with a so-called democratic constitution, that maintains […] the principle of the death penalty and its massive, even growing, application.” His study of the topic is thus regularly punctuated by forays into US legal history and current events. “Every day, during my seminars, in New York, in Chicago, in Irvine, California,” Derrida relates in an interview, “we spent the first part of our sessions analyzing items from the written and televised press.”

To Americans, many of the stories and statistics Derrida invokes and the comments he makes about the contradictions of US penal practices will be familiar fare: for example, his caustic observation that, in the United States, armed opposition to abortion is easily reconciled with a rabid opposition to the abolition of the death penalty. He is more insightful in exploring the notion that the American discussion of the application of the death penalty is “a more spectacular and heated debate than the debate over the death penalty itself.” The crucial reference here is the 1972 US Supreme Court ruling Furman v. Georgia, in which the justices struck down three death sentences, declaring that they constituted cruel and unusual punishment and were therefore in violation of the Eighth and 14th Amendments of the Constitution. The result was a four-year de facto moratorium on capital punishment in the United States.

For Derrida, the decisive point is that the justices did not abolish the death penalty as such, since they ruled not “on the principle of the death sentence, but on the cruelty of its execution.” In several important respects, however, his analysis of this ruling is misleading. The case was not primarily, as Derrida at moments appears to suggest, about the relative cruelty of one method of execution over another. The 5-4 ruling was an unusual per curiam decision, meaning that the Court issued only a brief, unsigned opinion, indicating deep divisions among the justices. Indeed, since no two justices could agree on the reasons for their respective rulings, each of them wrote a separate opinion, some two hundred pages in all. In the shaky coalition of five who prevailed, only two found that the death penalty in itself was cruel and unusual punishment, yet Derrida discusses the case as if these two dissenting opinions were the majority ruling. In fact, the “controlling” majority opinion — the majority of the majority, as it were — was the three justices who endorsed various versions of the claim that in the cases under consideration arbitrariness in the imposition of the death sentence betrayed racial bias, and for this reason the punishments were cruel and unusual.

To be sure, scrutinizing the details of the Furman case only confirms Derrida’s main point that the concept of cruelty, in all its myriad forms, undermines any simple distinction between the principles and practices of capital punishment, thereby creating unexpected challenges for the abolitionist cause. Furman, ostensibly a victory for death penalty opponents, in effect provided states with guidelines for rewriting their laws to ensure the constitutionality of future capital sentences. In 1976, the de facto moratorium on the death penalty was ended by the 7-2 Gregg v. Georgia decision, in which the Court held that the death penalty was constitutional providing that there were objective, reviewable sentencing criteria and that the character and history of the defendant were taken into account, precisely the reforms many states had enacted in the wake of the 1972 ruling.

What might Derrida have made of the recent news that a shortage of lethal injection drugs in the United States has “raised safety issues” about capital punishment, as states attempt to complete executions with untested chemical compounds, prompting calls for a return to the gas chamber, or even the firing squad? Among other things, he might have observed that even if capital punishment were abolished in every country on earth, this would by no means constitute an end to the unique dynamics of violence and subjugation with which such stories confront us. Near the close of the first year of the seminar, Derrida proposes that one of the great perversities of a death sentence is that in prescribing the time and place of our final moment, in laying claim to a mechanical control of the uncertainty that is the essence of our future, it robs us of our finitude. It remains to be seen whether the eradication of capital punishment would simply herald the emergence of a new but no less rigidly calculating order of life and death. What is certain is that this Death Penalty volume offers a rich, innovative approach to a confounding topic. One can only hope that it will be broadly read and debated.